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Breton v. Commissioner of Correction

Supreme Court of Connecticut

May 23, 2017

ROBERT BRETON
v.
COMMISSIONER OF CORRECTION

          Argued October 21, 2016

          Victoria L. Steinberg, pro hac vice, with whom were Moira L. Buckley and, on the brief, William H. Kettlewell, pro hac vice, and Jason A. Casey, pro hac vice, for the appellant (petitioner).

          Harry Weller, senior assistant state's attorney, with whom were Cynthia S. Serafini, senior assistant state's attorney, and, on the brief, Maureen Platt, state's attorney, and Michael Proto and Marcia Pillsbury, assistant state's attorneys, for the appellee (respondent).

          Rogers, C. J., and Palmer, Eveleigh, McDonald and Robinson, Js. [*]

          OPINION

          McDONALD, J.

         The petitioner, Robert Breton, was found guilty of two counts of murder and one count of capital felony for the 1987 stabbing deaths of his former wife and his son, and was sentenced to death.[1] The petitioner thereafter filed a petition for a writ of habeas corpus, attacking both his conviction and his death sentence. This appeal ensued after the habeas court denied the petition. Subsequent events have rendered the petitioner's claims relating to his death sentence moot; see part II of this opinion; leaving for our consideration those challenging the judgment of conviction.

         The principal issue in those remaining claims concerns defense counsel's obligation to investigate and present mitigating evidence that could reduce a defendant's culpability when the defendant has directed counsel not to present such evidence and has refused to aid in the presentation of such evidence. The petitioner claims, among other things, that his criminal trial counsel provided deficient representation by failing to investigate evidence that would have revealed that he suffered from post-traumatic stress disorder (PTSD) and methamphetamine intoxication at the time of the offenses, which in turn prejudiced him by depriving him of a meritorious mitigating defense strategy. Specifically, the petitioner points to counsel's failure to: (1) discover transcripts memorializing the petitioner's account of fatally stabbing his father in 1966; and (2) test the petitioner's blood sample drawn approximately forty hours after the crimes. The petitioner contends that, contrary to the habeas court's conclusions, his refusal to admit to the 1987 crimes and his instruction to counsel not to present an extreme emotional disturbance defense does not preclude relief because counsel had not adequately advised him of the evidence that was available due to their deficient investigation and they should not have acquiesced to the petitioner's uninformed decision.

         We conclude that counsel must ensure that a defendant has made a knowing and voluntary decision not to present mitigating evidence. We further conclude that the habeas court properly denied the petition in the present case as to the claims related to this issue, as well as to the petitioner's other claims challenging his conviction.

         I

         CRIMINAL TRIAL

         The underlying criminal proceedings were the subject of three previous appeals to this court. See State v. Breton, 212 Conn. 258, 259, 562 A.2d 1060 (1989) (Breton I) (reversing trial court's decision dismissing aggravating factor of capital felony and remanding case with direction to proceed with penalty phase); State v. Breton, 235 Conn. 206, 260, 663 A.2d 1026 (1995) (Breton II) (affirming judgment of conviction but reversing judgment imposing death sentence-first penalty phase- and remanding for new penalty phase hearing); State v. Breton, 264 Conn. 327, 446, 824 A.2d 778 (Breton III) (affirming judgment imposing death sentence in second penalty phase), cert. denied, 540 U.S. 1055, 124 S.Ct. 819, 157 L.Ed.2d 708 (2003). In Breton II, supra, 212-14, this court set forth the facts that the jury reasonably could have found at the guilt phase of the proceedings in support of the conviction. We briefly summarize the most salient of those facts, and supplement them with undisputed facts in the record regarding the circumstances leading to the present appeal.

         Sometime before 4:30 a.m. on Sunday, December 13, 1987, the petitioner entered the town house apartment where his former wife, JoAnn Breton, and their fifteen year old son, Robert Breton, Jr., had resided since the couple's divorce in January, 1987. The petitioner was armed with a knife. He proceeded to JoAnn Breton's bedroom, where he viciously beat and stabbed her. Robert, Jr., came to the bedroom in response to his mother's cries, but fled when the petitioner turned the attack on him. The petitioner pursued Robert, Jr., to the bottom of the staircase on the first floor, where the attack resumed. Both Robert, Jr., and JoAnn Breton sustained multiple knife wounds to the face, chest and neck. Each bled to death from a knife wound severing the carotid artery.

         The petitioner left the apartment and, at some point thereafter, drove to a nearby reservoir. Later Sunday morning, he called someone to pick him up at the reservoir because his truck had gotten stuck. Sunday evening, he went to work. He made arrangements with Domenic Aurigemma, a friend and coworker, to retrieve the truck the next day. When the men met on Monday morning, December 14, the petitioner asked Aurigemma to first drive him over to JoAnn Breton's apartment because he had repeatedly gotten a busy signal when he telephoned her over the weekend. Upon their arrival, the petitioner went to the apartment door but then returned to alert Aurigemma that he thought that there was blood on the doorknob. They then called the police.

         After the police arrived, obtained entry to the apartment, and discovered the bodies, they interviewed the petitioner. They noticed that the petitioner's hand was bandaged, with blood around the wound. An investigation that same day yielded evidence inculpating the petitioner. One witness reported hearing screams and then seeing the petitioner leave the apartment at approximately 4:30 a.m. on December 13. That same witness also reported having been told by Robert, Jr., that the petitioner had threatened to kill JoAnn Breton. The petitioner was arrested at approximately 8 p.m. on Monday, December 14, 1987. A search warrant executed at the petitioner's apartment yielded a pair of recently washed sneakers, still wet, that matched bloody footprints in the apartment. At approximately 9 p.m. on December 14, the police executed a search warrant that compelled the petitioner to submit to the drawing of a blood sample. The state never tested that blood sample to match it to blood at the scene. Instead, a second sample was drawn and tested by the state in March, 1989, by agreement of the parties, after defense counsel moved to suppress the first sample on the ground that the warrant affidavit contained false statements attributed to the petitioner.

         Approximately one month before jury selection was to commence, defense counsel requested that the court order a competency evaluation of the petitioner due to concerns arising from their conversations with him. The trial court, Heiman, J., ordered an independent evaluation by a team of clinicians, who later reported to the court that the petitioner understood the proceedings against him and was able to assist in his defense.

         While jury selection was in progress, defense counsel raised further concerns to the court when responding to the deadline for giving notice as to whether they would be presenting any expert testimony during the guilt phase in support of defenses relating to the petitioner's mental state. See Practice Book § 40-18. Counsel informed the court that they believed that there was important evidence related to the petitioner's mental state that could provide the jury with a basis to convict the petitioner of the lesser offense of manslaughter. Nevertheless, the petitioner had told counsel that he did not want them to present a defense of extreme emotional disturbance.[2] Counsel explained that they believed that they must acquiesce to the petitioner's wishes but asked the court to confirm the petitioner's position. The trial court then engaged in a colloquy with the petitioner to confirm that he understood that evidence of extreme emotional disturbance could reduce his culpability from murder to manslaughter, but that he had nonetheless instructed his counsel not to file ‘‘any notices of claims of extreme emotional disturbance'' and, additionally, that he had instructed them not to produce ‘‘any psychiatric evidence'' at the guilt phase of trial. After receiving that confirmation, the court found the petitioner competent to make this decision. The court informed the petitioner that such a defense still might be presented if he later changed his mind. The court also informed the petitioner that his wishes did not foreclose the possibility that the court could charge the jury on extreme emotional disturbance if the evidence warranted such an instruction. The state's attorney confirmed on the record his understanding that defense counsel had not precluded the presentation of expert testimony relating to the petitioner's mental condition at the penalty phase.

         During the guilt phase of trial, the defense solely advanced a theory of reasonable doubt. Counsel cross-examined the state's witnesses in an effort to call into question the credibility of the eyewitness identification and the physical evidence linking the petitioner to the crime scene. In their case, defense counsel presented only three witnesses. The testimony of those witnesses was intended to establish that the petitioner had cut his hand at work, many hours after the crimes.

         Before the defense rested, counsel asked, outside the presence of the jury, for certain matters to be placed on the record. First, defense counsel notified the court that the petitioner had elected not to testify. The court confirmed with the petitioner that he understood that he had the right to testify, but did not want to do so. Second, defense counsel expressed their concern that, despite repeated discussions with the petitioner, most recently that same day, he had refused to accept their advice to allow them to present an affirmative defense in mitigation. They asked the court to confirm the petitioner's decision. Before eliciting any statements from the petitioner, the court explained that it had no knowledge of the substance of the petitioner's discussions with counsel and was not seeking such information, as the court should not be privy to such matters. The court then explained to the petitioner that the presentation of certain evidence could result in a conviction of a lesser degree of homicide and urged him to give serious consideration to counsel's advice, pointing out that the court's previous denial of defense counsel's motion for a judgment of acquittal meant that there was sufficient evidence to present the capital felony and murder counts to the jury. The court took a short recess to afford the petitioner an opportunity to consult with counsel. When court reconvened, the petitioner confirmed that he had had a chance to discuss all aspects of the case with counsel, and counsel confirmed that the defense had no further evidence to present. After the state rested, the court gave a charge to the jury that included an instruction that, if it found that the petitioner had acted under the influence of an extreme emotional disturbance for which there was a reasonable explanation or excuse, it could find the petitioner guilty of manslaughter in the first degree instead of murder. The jury returned a verdict of guilty of murder and capital felony.

         The first penalty phase proceeded before the same jury approximately five months later, at which time defense counsel presented evidence of mitigating factors. Mitigating factors also were presented at the second penalty phase hearings heard by a three judge panel eight years later, following this court's reversal of the judgment imposing the death sentence in the first penalty phase. The primary evidence came from two expert witnesses, Walter Borden, a psychiatrist who had conducted a forensic psychiatric evaluation of the petitioner, and Anne Phillips, a clinical psychologist who had administered a battery of psychological tests to the petitioner. Borden and Phillips both diagnosed the petitioner as suffering from a severe mixed personality disorder with borderline schizoid, paranoid, and depressive features. Both experts opined that, at the time of the offenses, the petitioner suffered from extreme emotional disturbance and his mental capacity was significantly impaired.

         Borden's testimony was of particular significance. He had interviewed the petitioner on four occasions, beginning just two months after his arrest, in February, 1988, and ending in December, 1988. Borden also elicited background information from certain members of the petitioner's family, and reviewed psychological reports and certain public records pertaining to the petitioner. Those records included a presentence investigation report relating to the petitioner's conviction of manslaughter for killing his father twenty-one years before the petitioner killed his former wife and his son.

         Borden testified that the petitioner's early childhood and adolescence were replete with horrific neglect, abuse and abandonment-some of the worst Borden had ever encountered-that had significantly affected the petitioner psychologically. Borden described those circumstances at length, which this court recounted in Breton III, supra, 264 Conn. 340-42, 371-72. He described the petitioner's father as a heavy drinker who was abusive and threatening toward the petitioner and others, and who routinely carried a knife. Id., 342.

         Borden recounted the following information that he had elicited regarding the two events that are relevant to the petition presently before us, which we memorialized in Breton III: ‘‘On December 3, 1966, the [petitioner's] father left the house to go drinking. It was later reported that, while out drinking, the [petitioner's] father stated that the time had come to kill the [petitioner, who was then nineteen years old]. The [petitioner] was at home with his grandmother, who had just prepared a meal for them to eat, when the [petitioner's] father came in, threatened the [petitioner], pushed the kitchen table against him and threw him up against the wall. The [petitioner] retreated into the bathroom to escape from his father and told his grandmother to call the police. The [petitioner's] father then attacked [the] grandmother.

         ‘‘The [petitioner's] memory about what happened next was not clear. Borden testified that the [petitioner] told him that he remembered picking up a knife and seeing his father fall, apparently hurt. The [petitioner] did not remember stabbing him, however. The [petitioner] then ran out of the house, found a police officer to whom he indicated that his father had been hurt and brought the officer back to the house. The [petitioner's] father died of multiple stab wounds to the chest and face. Ultimately, the [petitioner] confessed to the killing. He pleaded guilty to manslaughter and received a suspended sentence. Borden testified that the [petitioner] told him that he did not clearly recall stabbing his father, but admitted that he must have done so.

         ‘‘Shortly after the [petitioner] killed his father, he met his wife, JoAnn Breton. He married her in December, 1967, within a few days of the first anniversary of his father's death. The [petitioner] was very dependent on his wife for stability and psychological support, but their marriage was stormy. Borden testified that the [petitioner] was pathologically jealous of other men, paranoid and delusional, and that these conditions derived from a belief that he could not be loved and from a profound distrust of other people.'' (Footnotes omitted.) Id., 342-43.

         ‘‘When the [petitioner] was laid off [from his job in 1985], he became depressed and started drinking heavily and taking pills. The relationship between him and his wife worsened. . . . Divorce proceedings were initiated in July, 1986, and were finalized in January, 1987.

         ‘‘During this period the [petitioner] continued to become more depressed and to drink heavily. He also took the prescription drugs Desoxyn and Fiorinal. Desoxyn is an amphetamine with a potent stimulant effect. Borden testified that it was the worst medication that could have been prescribed for the [petitioner] because it would have exacerbated his depression and paranoia and could trigger violent behavior. He also testified that using the drug in combination with alcohol would be ‘like throwing gasoline' on a simmering fire.

         ‘‘Borden testified that the [petitioner] reported to him that he was extremely depressed during the month of December, 1987. His birthday, the anniversary of his father's death and his wedding anniversary all occurred in that month. It would have been his twentieth wedding anniversary that year. [He felt abandoned by the fact that his former wife and his son were planning to leave for Florida on December 17, and would be away for Christmas.] . . .

         ‘‘On December 12, 1987, the [petitioner] went to his former wife's house in connection with one of [the various] tasks [that he had recently undertaken in the hopes of reconciling with her]. While there, he took her keys. That evening, the [petitioner] went to a bar. He met a woman there . . . and took her back to his house, where he attempted unsuccessfully to have sexual intercourse with her. At some point, he took the woman home and then returned to his own house. He then noticed the keys that he had taken from his former wife's house and decided to return them to her and to try to talk to her. By then, it was very early in the morning of December 13.

         ‘‘Borden testified that his understanding of the events that happened next was based on [his first] interview with the [petitioner] on February 20, 1988.[3] The [petitioner] told him that, as he parked the car in the parking lot [at] his former wife's house, he thought that he saw someone walking around [outside].[4] He then ‘strapped on' a knife, went to the door and let himself in with the keys. [The petitioner was wearing gloves.] The [petitioner] reported to Borden that, at that time, he felt nervous, scared and unsure of himself. He laid the keys on an ironing board and then returned to the door, intending to leave. Instead, he went down into the basement. He did not know why. At some point, he went back up to the first floor and stood for a while. He then decided to go upstairs to his former wife's bedroom. The [petitioner] reported to Borden that he still did not understand what he was doing. The [petitioner] entered his former wife's bedroom, knelt on the bed and grabbed her. She screamed. The [petitioner] reported to Borden that he just wanted to talk to her at that point, but was unable to speak. His former wife then yelled, ‘Bobby, call the cops, somebody is hurting me.'

         ‘‘Borden testified that, at this point in the narrative . . . the [petitioner's] demeanor changed dramatically. He began crying, sweating and trembling. In this agitated state, the [petitioner] reported to Borden that he had been trying to keep his former wife from yelling, not trying to hurt her. He recalled pushing her face down, wrestling on the bed with her and falling onto the floor. He found himself sitting on top of her and hitting her to keep her from yelling. She continued to scream to ‘Bobby' that someone was trying to rape her.

         ‘‘At some point a light went on in the hall next to the bedroom. When the [petitioner] looked up he saw someone standing in the doorway. The [petitioner] did not know who it was. At that point, the [petitioner] took the knife in his hand. Borden testified that the [petitioner's] description of his feelings at that time were ‘very similar [to those that he had described having at the time of] the death of his father where he described himself recalling, seeing the hand, his hand and the knife, not knowing what happened. . . . [I]t's like he didn't feel like he took the knife, he felt like his hand did it. It was a dissociative, it was not part of him.'

         ‘‘The [petitioner] reported to Borden that he did not recognize the person in the doorway. He said to his former wife that it was not ‘Bobby, ' but she said that it was. The person in the doorway then said something to the [petitioner]. The [petitioner] reported to Borden that he believed that the words were, ‘Dad, I love you.' At that point, the [petitioner] saw his own arm go out and hit the person in the doorway. He could not clearly see the person he was striking because the light was behind that person.

         ‘‘Borden testified that, during this part of the [petitioner's] narrative to him, the [petitioner] was extremely emotional, trembling and crying and appeared to be racked and tormented by his recollection. Borden testified that it was his impression that the [petitioner] was ‘back in that room' as he reported the events. The [petitioner] reported that he hit the person in the doorway and saw something gushing out of his neck or head and heard something gasping and gurgling. At that point, the [petitioner] recognized his son.

         ‘‘The [petitioner] then heard his former wife calling him and he returned to the bedroom. She asked the [petitioner], ‘[W]hy, Bob?' The [petitioner] then grabbed her hair and felt his hand hit her. He heard gurgling and then a crash. He left the bedroom and, as he started down the stairs, saw his son lying at the bottom of the stairs on the floor, shaking. At that point, he went back into the bedroom and knelt next to his former wife, who was lying on the floor and asked, ‘[W]hy, why.' He told her that he just wanted to talk, but then he hit her with his hand again.

         ‘‘Borden testified that, at this point in the interview, the [petitioner] said, in reference to what happened next, ‘God, no, no, no, I didn't do that.' The [petitioner] reported that he left the bedroom and went back downstairs. His son was lying dead at the bottom of the stairs with his eyes open and looking at the [petitioner]. The [petitioner] said to his son, ‘[T]hank you for the birthday card, ' and then stabbed him in the neck.[5]

         ‘‘Borden testified that, while the [petitioner] was reporting this portion of the narrative, he was saying, ‘[W]hy do I remember so much? Why do I have to remember?' and ‘[W]hy, why, why.' He also continued to cry and to be in an extreme emotional state. After describing his last act, however, his demeanor changed instantaneously, as if he had awoken from a nightmare. Borden testified that he could never persuade the [petitioner] to talk about the events surrounding the murders again. . . .

         ‘‘Borden testified that the [petitioner's] experience of his hand as not being a part of himself was an example of the depersonalization that borderline personalities are prone to experience. Borden also testified that depersonalization is a defense mechanism developed by children who have been subjected to chronic severe abuse. As adults, such persons are prone to go into a dissociative state under severe stress.

         ‘‘Borden testified that, in his opinion, at the time of the offense, the [petitioner's] ability to conform his conduct to the requirements of the law was significantly impaired; his mental functioning was significantly impaired; he suffered from a mental disease or defect, namely borderline personality disorder; and he was severely mentally ill. He also testified that the [petitioner] suffered from an extreme emotional disturbance at the time of the offense.'' (Footnotes added.) Id., 344-49.

         The three judge panel before which the second penalty phrase was heard made findings consistent with those found by the jury in the first penalty phase. The panel found that the state had proved beyond a reasonable doubt that the murders had been committed in an especially cruel manner. Id., 335-36. The panel found that the petitioner had not proved that he suffered from an extreme emotional disturbance, but had proved other mitigating facts, including that he was neglected, abandoned and the product of an abusive family unit during his childhood. Id., 336 and n.8. The panel concluded that none of the proven mitigating facts alone or in combination constituted mitigation. Id., 336. In accordance with its findings, the panel imposed a sentence of death. Id. The petitioner directly appealed from the judgment imposing this sentence to this court. Id.

         While the appeal in Breton III was pending, the petitioner filed a petition for a new trial, claiming that two transcripts of the petitioner's account of the 1966 killing of his father, which came to light for the first time during the state's cross-examination of Borden at the second penalty phase hearing, constituted newly discovered evidence. One transcript was from a police interview conducted hours after the crime; the other was from the coroner's inquest. The petition alleged that the transcripts would have led to a different outcome because the petitioner's dissociated mental state reflected in the 1966 transcripts would have led Borden to diagnose the petitioner as having a significant dissociated mental state at the time of the 1987 homicides that could have rendered him legally insane. This court continued the appeal in Breton III to allow that petition to proceed, after the petitioner argued that a hearing on the petition would provide a crucial factual underpinning for a related claim in the appeal. Id., 354. New trial counsel ultimately withdrew that petition with prejudice, following Borden's clarification that further testing would be necessary to determine whether the petitioner was legally insane at the time of the offense.[6]Id. The appeal in Breton III proceeded, and this court affirmed the judgment imposing a sentence of death on the petitioner. Id., 446.

         II

         HABEAS TRIAL

         Some prefatory comments are necessary to explain the scope of our review of the habeas proceedings. After his judgment of conviction and sentence became final, the petitioner filed an amended petition for a writ of habeas corpus, claiming that constitutional errors had infected every stage of the criminal proceedings- guilt phase, second penalty phase, petition for a new trial, and appeal. The habeas court, Schuman, J., denied the petition. The petitioner appealed from that judgment to the Appellate Court, and then moved to transfer the appeal to this court.

         Following our grant of the motion to transfer, we issued our decision in State v. Santiago, 318 Conn. 1, 122 A.3d 1 (2015), which effectively narrowed the issues that we must consider in the petitioner's present habeas appeal. In Santiago, this court held that, in light of the 2012 public act prospectively repealing the death penalty; Public Acts 2012, No. 12-5; the execution of offenders who committed capital felonies prior to the act's effective date would violate the state constitution's prohibition against cruel and unusual punishment. State v. Santiago, supra, 8-9. The parties in the present case agreed at oral argument before this court that Santiago rendered all of the petitioner's claims challenging his sentence of death moot, as the petitioner is now entitled to seek to have his sentence corrected to life imprisonment without the possibility of release. Therefore, the discussion of the habeas proceedings that follows is limited to the petitioner's claims that relate to the judgment of conviction.

         In the operative petition, the petitioner asserted the following claims that are relevant to the present appeal. First, he alleged guilt phase counsel rendered ineffective assistance by: (a) failing to discover the two 1966 transcripts, which could have ultimately established that the petitioner suffered from PTSD with dissociative features during the 1987 crimes; (b) failing to test the blood sample taken from the petitioner approximately forty hours after the 1987 crimes (first blood sample), which had remained in the state's file until discovered by habeas counsel, and which could have established that he suffered from methamphetamine (Desoxyn) intoxication during the commission of the offenses; and (c) presenting a marginal reasonable doubt defense to the exclusion of a meritorious extreme emotional disturbance defense. Second, he alleged that he had received ineffective assistance of counsel in his petition for a new trial because counsel had withdrawn the meritorious petition with prejudice. Third, the petitioner alleged that the cumulative effect of counsel's deficient performance regarding the aforementioned matters constituted the prejudice necessary to establish ineffective assistance of counsel, as well as a violation of his right to due process. Fourth, the petitioner alleged that the state's failure to disclose the 1966 transcripts constituted the suppression of material, exculpatory evidence in violation of Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).

         Hearings on the habeas petition took place in 2011- twenty-four years after criminal trial counsel was appointed, and twenty-two years after the guilt phase of the criminal trial concluded.[7] Although we explore the details of this evidence in part III of this opinion in our analysis of the petitioner's specific claims, we briefly summarize that evidence to provide context for the habeas court's decision.

         The petitioner proffered testimony from Alan McWhirter and Richard F. Kelly, who represented the petitioner at the guilt phase and the first penalty phase, as well as from the other attorneys whose performance at other stages of the criminal proceedings was alleged to be deficient. McWhirter and Kelly had little recall of the details of their communications with the petitioner and their investigatory strategies due to the exceptionally long time that had lapsed since they represented the petitioner. Defense counsel clearly recalled, however, that the petitioner had consistently taken the position that he did not commit the crimes and had consistently refused to allow them to present any defense that would be tantamount to an admission that he had done so. They acknowledged that they had believed all along that a reasonable doubt defense had little chance of success. Nonetheless they pursued that strategy because (1) they believed that the petitioner had the right to decide whether to effectively admit that he had committed manslaughter, and (2) the petitioner had suggested that he would take the stand to deny having committed the crimes if counsel put on evidence suggesting that he had done so. Defense counsel did not believe that they had specifically discussed PTSD with the petitioner, but they recalled discussing the petitioner's drug and alcohol abuse. McWhirter testified that defense counsel had recognized that intoxication ‘‘would possibly be a defense we could raise depending on whether it was intention[al], unintentional, or whatever. Obviously it never got raised because [the petitioner] would not let us go in that direction.''

         The petitioner also proffered documentary evidence and expert witnesses. The petitioner presented expert opinion that the 1966 transcripts would have provided significant evidence that the petitioner was in a dissociative state when he killed his father, which was reflective of PTSD resulting from prior childhood trauma. The experts further opined that this evidence, in combination with the petitioner's account of the 1987 crimes to Borden and subsequent interviews or testing, demonstrated that he suffered from PTSD with dissociative features during the commission of the 1987 crimes.

         The petitioner also presented expert testimony extrapolating, on the basis of the level of methamphetamine detected when habeas counsel tested the first blood sample in 2005: (a) a range of the level of the drug in the petitioner's system when the blood was drawn in 1987; and (b) from that range, a range of the level of the drug in his system forty hours earlier when he committed the crimes. The petitioner presented expert opinion that levels in this range would have caused the petitioner to suffer methamphetamine intoxication.[8] One of the petitioner's experts, Neil Blumberg, a psychiatrist, opined that the petitioner had six mental disorders at the time of the crimes-chronic PTSD, depressive disorder not otherwise specified, amphetamine intoxication, amphetamine abuse, alcohol dependence, and personality disorder not otherwise specified with borderline features-that collectively had caused an extreme emotional ...


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